His Honour clearly addressed a question that went beyond the operation

of the principle against double jeopardy and the operation of the

doctrine of res judicata and its manifestation in the pleas of

autrefois convict and autrefois acquit ((29) Arguably, autrefois

acquit falls into the category of issue estoppel rather than into the

category of res judicata: see per Lord Pearce in Connelly v. Director

of Public Prosecutions (1964) AC at 1365. But categorization is

immaterial to the question to be decided in this appeal. Mason J

regarded autrefois acquit as a manifestation of res judicata in Storey

problem of re-litigating issues that had already been finally decided

between the Crown and an accused. It was the determination of issues,

not the effect of judgments, that he was discussing. He was not

purporting to affect the pleas of autrefois convict and autrefois

acquit which relate directly to criminal liability for conduct

(although, as Mraz (No.2) illustrates, the application of the doctrine

of issue estoppel in criminal cases may protect an accused against

double jeopardy in respect of the same conduct charged in successive

8. Dixon J defined the essence of the doctrine of issue estoppel in

Blair v. Curran ((30) [1939] HCA 23; (1939) 62 CLR 464 at 531.):

" A judicial determination directly involving an issue of

fact or of law disposes once for all of the issue, so that

it cannot afterwards be raised between the same parties or

their privies."

Issue estoppel is thus concerned with the determination of issues.

Res judicata, on the other hand, is concerned with the remedy or

relief granted in a given set of circumstances. His Honour pointed to

the distinction in Blair v. Curran ((31) ibid at 532.):

"The distinction between res judicata and issue-estoppel is

that in the first the very right or cause of action claimed

or put in suit has in the former proceedings passed into

judgment, so that it is merged and has no longer an

independent existence, while in the second, for the purpose

of some other claim or cause of action, a state of fact or

law is alleged or denied the existence of which is a matter

necessarily decided by the prior judgment, decree or

order."

9. Although merger provides a distinction between res judicata and

issue estoppel, both doctrines bind the parties and their privies to

accept a final judicial decision of a question between the parties as

correct ((32) Nelson v. Couch [1863] EngR 736; (1863) 15 CB (NS) 99 at 108 [1863] EngR 736; (143 ER 721

at 724).). The rule is expressed in the maxim res judicata pro

veritate accipitur. The parties and their privies are bound by the

judgment or order into which any cause of action or right to relief has

passed (res judicata) and by the determination of any issue which was

the necessary legal justification or foundation for the prior decision

(issue estoppel). In Wilkes, Dixon J was speaking of the

determination of the same issue in successive criminal trials. He was

not speaking of the verdicts or judgments that might follow successive

prosecutions based on the same set of circumstances.

10. Issue estoppel extends not only to findings of fact or decisions

on points of law that are expressly declared in a judgment or order

but to any "matter which it was necessary to decide, and which was

actually decided, as the groundwork of the decision itself, though not

then directly the point at issue" ((33) Reg. v. Hartington Middle

Quarter (1855) 4 El and Bl 780 at 794 [1855] EngR 264; (119 ER 288 at 293); Blair v.

Curran (1939) 62 CLR at 532.). But issue estoppel does not extend to

findings of fact which, though contested and probative of the ultimate

issue, are not necessary to, or are not the legal foundation of, the

decision made ((34) Blair v. Curran (1939) 62 CLR at 531-533.).

Starke J confined the scope of the doctrine in these terms ((35) ibid

at 510; see also Brewer v. Brewer [1953] HCA 19; (1953) 88 CLR 1 at 14-16.):

"a judgment is conclusive evidence not merely of the facts

directly decided but of those facts which are necessary

steps to the decision - so cardinal to it that without them

it cannot stand". (Emphasis added.)

Being so confined, the doctrine is not accorded a scope broader than

the maxim res judicata pro veritate accipitur demands. Subsequent

decisions can be made untrammelled by the prior determination provided

they are not necessarily inconsistent with it. In Wilkes, Dixon J

was alive to the limitations on the operation of the doctrine of issue

estoppel and accurately anticipated that the occasions for applying

the doctrine in the context of jury verdicts would be extremely

confined. But that is not to deny either the applicability or the

utility of the doctrine to criminal cases. In Mraz (No.2) there was

an occasion to apply the doctrine to a finding implicit in a verdict

and the present case offers an occasion to apply it to a ruling made

on a voir dire. The utility of applying the doctrine is another

matter, but it is convenient to leave that topic until we examine Mraz

11. In Mraz (No.2), this Court unanimously allowed an appeal against

a conviction for rape by applying the doctrine of issue estoppel to

a verdict of manslaughter returned against Mraz on a charge of

felony-murder. The felony alleged was rape and the proposition

on which murder was charged was that Mraz caused the death of the

deceased woman during or immediately after the commission of the rape.

The jury's verdict of manslaughter negated that proposition. The

"On a subsequent indictment the Crown would be precluded

upon any issue which could not be found consistently with

the negative of the proposition. For the Crown is as

much precluded by an estoppel by judgment in criminal

proceedings as is a subject in civil proceedings: R. v.

Wilkes ((37) (1948) 77 CLR at 518, 519.); Sambasivam v. Public

Prosecutor of Malaya ((38) (1950) AC at 479.)."

It was the rape alleged in the earlier trial with which Mraz was

charged and for which he was convicted in the later trial. By

analysis of the evidence and of the conduct of the earlier trial, the

Court concluded that the jury in that trial had acquitted Mraz of

murder by finding that he was not guilty of the rape of which he was

convicted in the later trial. That finding was not disclosed by the

record of the earlier trial ((39) (1956) 96 CLR at 69.). But a

court, in ascertaining whether a finding has been made on which an

estoppel is raised, is entitled to look not only at the record - often

inscrutable in a criminal case - but also at any material that shows

what issues were raised and decided ((40) per Fullagar J in Jackson

v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 467; see also Gray v. Dalgety and Co.

Ltd. [1916] HCA 35; (1916) 21 CLR 509 at 543; Hoysted v. Federal Commissioner of

Taxation [1921] HCA 56; (1921) 29 CLR 537 at 563; Mraz v. The Queen (No.2) (1956) 96

CLR at 69.). By contrast, when res judicata is raised, the Court is

confined to reference to the record. For this reason I am unable, with

respect, to share the view taken by Mason J in Storey, that Mraz

(No.2) is a case of res judicata ((41) Even if one treats the record

in the earlier trial of Mraz as having included the rape as a

particular of the felony-murder, the record was ambiguous as to the

element of the crime of murder of which the jury was not satisfied.).

It was an instance of the application of the doctrine of issue

12. In Humphrys, Lord Hailsham ((42) (1977) AC at 38.) regarded both

Mraz (No.2) and Dixon J's statement in Wilkes as going no further than

saying that double jeopardy precludes the acceptance of a verdict of

guilty inconsistent with a previous verdict of acquittal. That the

principle against double jeopardy has that effect can be accepted but

the problem in Mraz (No.2) was to discover the terms of the previous

verdict; the problem was to discover whether the previous verdict was

based on a finding that Mraz was not guilty of rape and, in the event

of discovering that that was the basis of the verdict, to provide

appropriate relief. That problem was solved by applying the doctrine

of issue estoppel. Lord Hailsham, while insisting that double

jeopardy is "aimed at verdicts rather than issues" ((43) ibid at 40.), could accommodate the problem addressed in Mraz (No.2) only by

allowing that "issues may sometimes be isolated and examined to see

whether there has in fact been a danger of inconsistent verdicts"

((44) ibid.). Once it is found necessary to go behind the meagre

record of a criminal trial in order to ascertain the basis of a

verdict, the applicable doctrine is issue estoppel, not res judicata.

In Humphrys, Viscount Dilhorne ((45) ibid at 18.) regarded Mraz

(No.2) as "not very satisfactory" because the conviction for rape in

the later trial would not have been quashed if this Court had been

unable to discover that the verdict in the earlier trial involved a

finding that Mraz was not guilty of rape. His Lordship's reasons were

adopted by Barwick CJ in Storey ((46) (1978) 140 CLR at 373.).

But, with respect, it is hardly a criticism of the doctrine of issue

estoppel that the verdict in a criminal trial usually precludes an

effective application of the doctrine although, infrequently, it is

possible for the court to identify and avert the double jeopardy to

13. If it be right to say that it is not an object of the rule against

double jeopardy to preclude the re-litigation of issues already

finally decided between the Crown and an accused and if the avoidance

of double jeopardy is the only purpose of the law relating to the

effect of a verdict of acquittal, it would be sound legal policy not

to apply the doctrine of issue estoppel in criminal cases. Taking

that view, to introduce the doctrine to the criminal law would be

to produce in some cases the artificiality that troubled Gibbs J

in Storey. But, where successive verdicts can be shown to be

inconsistent in fact though not in form, it would be a reproach to the

criminal law if it were unable to prevent the conviction of a person

for conduct in respect of which that person had been found not to be

guilty. This was the problem in Mraz (No.2). The Court examined a

verdict opaque in form and discovered that it was founded on an

acquittal. That was an application of the doctrine of issue estoppel,

not of the doctrine of res judicata. Although the doctrine of issue

estoppel has not always been distinguished in terms from the doctrine

of res judicata or the principles of double jeopardy, it is a doctrine

14. Why, it must be asked, should the avoidance of re-litigation of

issues not be an object of the criminal law? In Wilkes, Dixon J

thought that it should. For that reason, he thought that there is

"nothing wrong" in the application of the doctrine of issue estoppel

in criminal cases ((47) (1948) 77 CLR at 518.). There is, in my

opinion, greater force in the policy considerations that weighed with

Dixon J than in the contrary view. Indeed, the avoidance of

re-litigation of issues is an object not only of the doctrine of issue

estoppel but also of the doctrine of res judicata in the general law.

The principles underlying the doctrine of res judicata were stated by

Lord Blackburn in Lockyer v. Ferryman ((48) (1877) 2 App Cas 519 at

"The object of the rule of res judicata is always put upon

two grounds - the one public policy, that it is the

interest of the State that there should be an end of

litigation, and the other, the hardship on the individual,

that he should be vexed twice for the same cause."

In Jackson v. Goldsmith ((49) (1950) 81 CLR at 466.) Fullagar J

attributed the rule as to res judicata to the same principles,

expressed in the Latin maxims interest reipublicae ut sit finis litium

and nemo debet bis vexari pro eadem causa. If the pleas of autrefois

convict and autrefois acquit are true manifestations of res judicata,

the policy that underlies those pleas is not only the avoidance of

double jeopardy but the public interest that there be an end of

litigation. Why should that public interest not be served by the

avoidance of re-litigation of issues in criminal cases? True it is

that the Crown may be able to bring overwhelming evidence on a later

trial though it had suffered an issue to be determined without that

evidence in an earlier trial, but that consideration can be advanced

with equal cogency against the plea of autrefois acquit as it can

15. Of more concern to legal policy is the factor which led Lamer J

in Duhamel v. The Queen ((50) (1984) 2 SCR 555; 14 DLR (4th) 92.) to

draw back from applying the doctrine of issue estoppel to a finding

made on a voir dire, namely, the absence of any appeal. His Lordship

"Though the voir dire is in a sense autonomous, it is

nevertheless totally dependent upon the main trial for its

appeal process. Let us postulate error on the part of the

judge in determining the admissibility of the statement.

If the statement is wrongly excluded, even through error of

law, but the accused nevertheless convicted, benefit of

the doctrine of res judicata would then be founded upon an

error of law beyond the reach of redress. Indeed, the

Crown has no appeal from that conviction. Similarly, if

the statement is excluded through error of fact, and the

accused acquitted, again the erroneous finding is beyond

the reach of the courts as the Crown's right to appeal is

limited to matters of law."

In this context, it is instructive to consider the judgment of the

Court of Appeal of New Zealand in Bryant v. Collector of Customs ((52)

(1984) 1 NZLR 280.). The Court held that a ruling on voir dire

excluding confessional evidence as involuntary concluded the issue of

admissibility in a subsequent trial. Richardson J ((53) ibid at

284.) held that the first ruling "was immediately binding on the Crown

and became final when the verdict of the jury was entered". But in

that case the Crown could have had the ruling reserved for the opinion

of the Court of Appeal and, having failed to do so, the Crown's attempt

to tender the confession in the subsequent trial was regarded as an

" In turn the Judge's duty at that point was to exercise

the inherent power which any Court of justice must possess

to prevent abuse of its processes and to refuse that

application. Only in that way could he serve the relevant

public policies underlying the doctrine of abuse of process

in this area of the criminal law: that litigation should

settle disputes finally; that an accused should not be

harassed again by the reopening of a central issue on which

he succeeded at the first trial; and that if an unappealed

or unsuccessfully appealed final decision of one Court may

be reopened by another Court any resulting inconsistency

can only bring the administration of justice into

disrepute."

The provisions of s.5F of the Criminal Appeal Act appear to provide an

avenue of appeal against interlocutory orders similar to that provided

by the law of New Zealand. For that reason, Bryant is a more

16. However, even in the absence of any avenue of appeal, I would

favour the application of the doctrine of issue estoppel (subject to

a qualification presently to be mentioned) to findings made in the

course of rulings that become final. The policy of the criminal law

has traditionally favoured the limitation of Crown appeals against a

verdict of acquittal ((55) Davern v. Messel [1984] HCA 34; (1984) 155 CLR 21;

Thompson v. Mastertouch T.V. Service Pty. Ltd. (No.3) [1978] FCA 24; (1978) 38 FLR

397; 19 ALR 547; cf. per Starke J in Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691

at 702-703.) and the tenderness shown by the law in this respect

combined with the desirability of finality in litigation justifies the

application of the doctrine of issue estoppel to final rulings in

favour of an accused on voir dire. Although, on a balance of policy

considerations, I would favour the application of the doctrine in

criminal cases, I do so with some misgivings of the kind which weighed

with Lamer J in Duhamel. But at the end of the day, to allow

inconsistent findings to stand either on criminal liability for conduct

or on voluntariness in the making of a confession could only engender

the gravest sense of injustice in an accused person and promote the

notion that a criminal trial is, in significant respects, a lottery.

17. However, there is one objection to the application of the doctrine

of issue estoppel in criminal cases that must be accepted. It is

impossible to treat mutuality as essential to the operation of the

doctrine in criminal law. Although mutuality is a criterion of

applicability of the doctrine in civil litigation ((56) Petrie v.

Nuttall [1856] EngR 103; (1856) 11 Ex 569 (156 ER 957); Caine v. Palace Steam Shipping

Company (1907) 1 KB 670 at 683; (1907) AC 386 at 395.) and has been

held to preclude the acceptance of a conviction as conclusive in

favour of another party in civil proceedings ((57) Hutton v. Ras Steam

Shipping Company Limited (1907) 1 KB 834 at 844.), an issue estoppel

cannot enure for the advantage of the Crown in a criminal trial.

Although there be an identity of parties - the Crown being, in the eye

of the law, the party to a criminal prosecution ((58) Commonwealth

Life Assurance Society Ltd. v. Smith [1938] HCA 2; (1938) 59 CLR 527 at 538.) -

mutuality would run counter to the basic notion that the accused is

entitled to the presumption of innocence until the Crown produces

evidence that satisfies the jury of his guilt beyond reasonable doubt.

As Gibbs J said in Storey ((59) (1978) 140 CLR at 380-381.):

"It would be contrary to the fundamental principles of the

criminal law that the members of a jury should be obliged

by the decision of another tribunal to bring in a verdict

against an accused person, without themselves being

satisfied that issues which the accused wished to contest

had been proved against him."

It follows that issue estoppel can operate, if at all, only in favour

of an accused person, not against him. Mutuality is, in my respectful

opinion, the only valid objection to the application of the doctrine

in criminal cases ((60) Issue estoppel was applied against an accused

in Reg. v. Hogan (1974) QB 398 but that case was overruled in Humphrys

and rightly so.). If the doctrine is to be either rejected or

modified for application in criminal cases, the better view is that it

be modified. Adoption of the doctrine follows the unwavering line of

authority in this Court before Storey, the views of Stephen ((61)

(1978) 140 CLR at 391 agreeing with Aickin J), Murphy ((62) ibid at

413.) and Aickin ((63) ibid at 423.) JJ in that case and, subject

to a modification ((64) Occasioned, it seems, by the explanation which

Jacobs J offers of Mraz (No.2) in Storey: ibid at 407.), the views of

18. The earlier cases in this Court clearly related to final judgments

following verdicts of acquittal. But no distinction can be drawn

between the nature of the questions necessarily determined by a

judgment of acquittal on the one hand and the nature of the questions

necessarily determined by a decision to exclude confessional evidence

on the other. Issue estoppel is a doctrine which is capable of

applying to any kind of issue that has been litigated before and

finally determined by a court of competent jurisdiction. In In re

May ((65) (1885) 28 Ch D 516 at 518.) Brett MR, dismissing an

argument that the doctrine of res judicata applies only where there is

"The doctrine of res judicata is not a technical doctrine

applicable only to records. It is a very substantial

doctrine, and it is one of the most fundamental doctrines

of all Courts, that there must be an end of litigation, and

that the parties have no right of their own accord, after

having tried a question between them and obtained a

decision of a Court, to start that litigation over again on

precisely the same questions."

If a formal record is unnecessary to raise a plea of res judicata in

the strict sense, a fortiori a record is not needed to raise an issue

estoppel on a finding not expressed in the ultimate decision in the

trial ((66) Hoysted v. Federal Commissioner of Taxation (1921) 29 CLR

19. If there be any distinction between cases in which an issue

estoppel has arisen out of a verdict and judgment of acquittal and the

present case, the distinction must lie in the finality of a judgment

of acquittal and the provisional character of an interlocutory

decision to exclude evidence. A decision that evidence is

inadmissible against an accused is susceptible of recall during the

trial and may, on that account, be regarded as provisional ((67) Reg.

v. Watson (1980) 2 All ER 293.). But whether such a decision be

treated as provisional so long as the trial is proceeding or as final

though subject to recall during the trial, it is certainly a final

decision beyond recall once judgment is entered on a verdict

determining the contested counts in the indictment ((68) Hunter v.

Chief Constable [1981] UKHL 13; (1982) AC 529 at 542; Bryant v. Collector of Customs

(1984) 1 NZLR at 284.). In Reg. v. Blair ((69) (1985) 1 NSWLR 584.), the Court of Criminal Appeal of New South Wales held that no issue

estoppel could arise out of a ruling given in an aborted trial. It is

unnecessary to consider whether that case was correctly decided, for

the trial before Judge Phelan was not aborted and the ruling that the

portions of the records of interview relied on by the Crown were

inadmissible was, or became, a final ruling. Whether or not the Crown

is able to appeal against the ruling, the ruling was, in the relevant

sense, final ( (70) Bynoe v. Bank of England (1902) 1 KB 467 at 470.) .

20. In this case, the effect of a verdict and judgment of acquittal is

not in question; the question is as to the effect of a finding, made

for the purposes of a final ruling on admissibility of evidence that

the accused did not voluntarily participate in the taking of records

of interview parts of which were sought to be tendered in the earlier

trial. The difficulty, as Dixon J noted in Blair v. Curran ((71)

(1939) 62 CLR at 532-533.), is to distinguish between findings which,

however deliberate and formal, concern only evidentiary facts and

findings which concern facts that are necessarily involved in the

decision as its legal foundation. At the conclusion of the voir dire,

Judge Phelan made his ruling rejecting the relevant confessional

statements. The finding of fact on which that ruling was legally

founded and which was essential to the ruling was that Rogers had not

participated voluntarily in the taking of the records of interview. I

understand that finding to relate to the series of four records of

interview, there being no distinguishing feature as to any one of them.

Either immediately when the ruling was made or later when the ruling

became final, the Crown was estopped from asserting that Rogers had

participated voluntarily in the taking of the records of interview. In

Rogers' forthcoming trial, none of those records of interview can be

admitted in evidence. Unless the Crown adduces further evidence on

counts 1, 4, 6 and 8, Rogers will be entitled to a verdict of acquittal

21. In the Court of Appeal, it seems that the argument on abuse of

process was that the Crown's proposed tendering of confessional

evidence before Judge Kinchington was a collateral attack on the

ruling of Judge Phelan. That was to mistake the nature of the

proposed tender. There is nothing to suggest that the tender was for

any purpose other than proof of the issues in the second trial. The

ruling of Judge Phelan would be left untouched if the Crown succeeded

in having the relevant, and different, parts of the records of

interview admitted in evidence on the second trial.

22. There is no abuse of process in the bona fide prosecution of a

person for a criminal offence ((72) Williams v. Spautz [1992] HCA 34; (1992) 174 CLR

509 at 535.). The tender of evidence that is probative of the offence

charged is not an abuse of process merely because its admissibility is

challenged. If the evidence is rejected, the trial simply proceeds

without it. It may be that the launching of a prosecution without any

admissible evidence to support it would, dependent on the

circumstances, warrant an inference that the prosecution is launched

for some ulterior and improper purpose. If that were so, a stay to

prevent an abuse of process might be called for ((73) See Barton v.

The Queen [1980] HCA 48; (1980) 147 CLR 75 at 96-97. Jago v. District Court (N.S.W.)

[1989] HCA 46; (1989) 168 CLR 23 at 45-46.). But that is not the present case. Here

the trial should proceed to its conclusion, the objection by Rogers to

the admissibility of the records of interview being upheld. Both the

Crown and Rogers are entitled to a verdict on the issues joined by

Rogers' plea of not guilty and no judge should stand in the way of

obtaining a verdict ((74) Connelly v. Director of Public Prosecutions

(1964) AC at 1304.). The submission that the trial before Judge

Kinchington should be stayed as an abuse of process must be rejected.

23. For these reasons, I would conclude that the Court of Criminal

Appeal was right to dismiss the appeal against Judge Kinchington's

refusal to stay the proceedings. Judge Kinchington was asked to stay

the proceedings on the grounds that the confessions contained in the

records of interview were not admissible but his Honour declined to do

so on Rogers' preliminary application for a permanent stay. However,

the question of the effect of Judge Phelan's ruling on admissibility

was central to the debate before Judge Kinchington and the Court of

Criminal Appeal and it would have been within the powers of the Court

of Criminal Appeal under s.5F of the Criminal Appeal Act to allow the

appeal against Judge Kinchington's refusal to make a ruling excluding

that evidence. It should have done so. I would therefore allow the

appeal, set aside the order of the Court of Criminal Appeal and in

lieu thereof allow the appeal to that Court and declare that the

records of interview taken on 27 or 28 August 1988 are not admissible

against the appellant on his trial on the indictment presented before

DEANE AND GAUDRON JJ The appellant, Grahame Andrew Rogers, was

interviewed by police in August 1988 in relation to a number of armed

robberies ("the 1988 interview"). He made various admissions which

were recorded in four separate typewritten documents or records of

interview. He signed each of the documents and was later charged with

2. In 1989, the appellant stood trial in the District Court of

New South Wales on four charges of armed robbery, the robberies in

question having been the subject of confessional statements made

during the 1988 interview. The relevant records of interview or, more

accurately, two of them and relevant parts of the third ((75) The

first two records of interview dealt with the first and second counts

in the indictment respectively and the third (the fourth record

actually signed by the appellant) dealt with the third and fourth

counts and various other offences which were not charged in the

indictment.) were tendered and objected to. The trial judge conducted

a voir dire examination in which, to quote his Honour "the real issue"

came "down to the voluntariness of the records of interview". In a

context where the Crown bore the onus of proof on the balance of

probabilities in relation to that issue, his Honour resolved it in

favour of the appellant, holding that the appellant had not voluntarily

participated in the making of the records of interview and thus, they

were inadmissible. The trial proceeded and, in due course, the jury

acquitted on the first and second counts and convicted on the third

3. In 1992 the appellant was indicted on another eight charges

of armed robbery. Of these, seven were the subject of confessional

statements in the 1988 interview. The prosecution proposes to rely

on those statements. One, a confessional statement in relation to a

robbery at Bankstown Trotting Club, is contained in the fourth record

of interview ((76) Strictly, this was the third record of interview

signed by the appellant.), which was not relevant and, thus, was not

tendered in the 1989 proceedings. The other six are contained in the

third record of interview, parts of which were tendered on the third

4. The appellant moved for a permanent stay of the 1992 indictment.

The motion came on for hearing immediately following his arraignment.

The argument for the appellant was that, by reason of the 1989 ruling

on admissibility, tender of the records of interview as proposed by

the prosecution would be an abuse of process, or alternatively, there

5. It is common ground that the 1989 ruling was made by reference

to the circumstances surrounding the making and signing of all four

records of interview and that the specific matters on which the ruling

was based applied equally and still apply equally to each of them.

Thus, so far as voluntariness is concerned, the simple fact is that

the confessional statements involved in this case are no different

6. It emerged during the hearing of the motion that, although the

only evidence against the appellant on the first, fourth, sixth and

eighth counts is the confessional material recorded during the 1988

interview, there is other evidence on the other counts. When this

was made clear, the motion was treated as an application for a stay

of proceedings on the former counts and for a declaration that the

prosecution was not entitled to tender the records of interview on any

of the other counts. The motion was dismissed. The Court of Criminal

Appeal of the Supreme Court of New South Wales granted leave to appeal

but dismissed the appeal. The appellant now appeals to this Court.

7. It is convenient to deal first with the question of issue

estoppel. It is well settled, so far as civil proceedings are

concerned, that, if a "judicial determination directly involv(es) an

issue of fact or of law ... that (issue) cannot afterwards be raised

between the same parties or their privies" ((77) Blair v. Curran

[1939] HCA 23; (1939) 62 CLR 464 at 531 per Dixon J See Hoysted v. Federal

Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 at 561 where Higgins J

(dissenting) first used the term "issue- estoppel". With regard to the

development of the doctrine in English law, see Thoday v. Thoday (1964)

P 181 at 197-198 per Diplock L.J; Fidelitas Shipping Co. Ltd. v. V/O

Exportchleb (1966) 1 QB 630; Carl Zeiss Stiftung v. Rayner and Keeler

Ltd. (No.2) (1967) 1 AC 853.). That rule, or "issue

estoppel" as it is generally called, is different from "res judicata"

or "cause of action estoppel" which occurs when a cause of action

passes into judgment so that "it is merged and has no longer an

independent existence" ((78) Blair v. Curran (1939) 62 CLR at 532.)

and "no other proceedings can thereafter be maintained on (it)" ((79)

Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. See also Port of

Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 at 597;

Chamberlain v. Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at

507.). The rule with respect to res judicata or cause of action

estoppel is embodied in the Latin maxim transit in rem judicatam.

8. It was said by Fullagar J in Jackson v. Goldsmith that res

judicata or cause of action estoppel is "not ... correctly classified

under the heading of estoppel at all", but "is a broad rule of public

policy based on the principles expressed in the maxims `interest

reipublicae ut sit finis litium' and `nemo debet bis vexari pro eadem

causa'". His Honour went on to say that issue estoppel was, in his

view, "a true case of estoppel, analogous to estoppel by deed and

estoppel by representation" ((80) (1950) 81 CLR at 466.).

9. It will later be necessary to say something of the distinction

drawn by Fullagar J between issue estoppel and res judicata or cause

of action estoppel. It is convenient, before doing so, to say

something of the Latin maxims to which his Honour referred. The

first expresses the need, based on public policy, for judicial

determinations to be final, binding and conclusive. The second looks

to the position of the individual and reflects the injustice that

would occur if he or she were required to litigate afresh matters

which have already been determined by the courts. It is correct to

say that res judicata or cause of action estoppel derives from the

principles embodied in those maxims, which principles are fundamental

to any civilized and just judicial system. There is, however, another

related principle, likewise fundamental, which is embodied in the

Latin maxim res judicata pro veritate accipitur. That maxim gives

expression to a rule of Roman law which has since been recognized

as part of our common law. It expresses the need for decisions of

the courts, unless set aside or quashed, to be accepted as

incontrovertibly correct. The same idea was expressed in Coke's

Institutes in terms of the "incontrollable credit and veritie" of the

records and memorials of the judges of the courts of record, which

"admit no averment, plea or proofe to the contrarie" ((81) 2 Co.

Littl. 260(a).). That principle is not only fundamental, it is

essential for the maintenance of public respect and confidence in the

administration of justice ((82) As to the necessity for courts to

conduct their proceedings with this end in view, see Connelly v. DPP

10. From earliest times, the principle embodied in the maxim res

judicata pro veritate accipitur has been seen as necessary to protect

against "the scandal of conflicting decisions" ((83) Spencer Bower and

Turner, The Doctrine of Res Judicata, 2nd ed. (1969) at 411.). Issue

estoppel and res judicata or cause of action estoppel are mechanisms

which protect against conflict of that kind. However, the principle

has an existence beyond those mechanisms so that, for example, it is an

abuse of process to mount a collateral attack in civil proceedings on

an earlier decision in a criminal trial. At least that is so unless

there is a less onerous burden of proof or there is fresh evidence or

proof of fraud ((84) See, for example, Hunter v. Chief Constable of

the West Midlands Police [1981] UKHL 13; (1982) AC 529 at 541, 544-545 per Lord

Diplock; Bryant v. Collector of Customs (1984) 1 NZLR 280 at 284-285.).

11. As earlier indicated, there is a real distinction between issue

estoppel and res judicata or cause of action estoppel ((85) See fns

(78) and (79).). That distinction was recently reaffirmed by this

Court in Chamberlain v. Deputy Commissioner of Taxation ((86) (1988)

164 CLR at 507-508. See also Tanning Research Laboratories Inc. v.

O'Brien [1990] HCA 8; (1990) 169 CLR 332 at 345-346.). But in our view, the

distinction does not depend on issue estoppel being a true estoppel and

res judicata being a manifestation of the policy considerations

embodied in the Latin maxims identified by Fullagar J in Jackson v.

Goldsmith. If issue estoppel is confined to an issue of fact or law

directly involved in a judicial determination, as was said in Blair v.

Curran ((87) (1939) 62 CLR at 531 per Dixon J), to a matter which

has been put in issue and determined, as was said in Outram v. Morewood

((88) [1803] EngR 498; (1803) 3 East 346 at 355 per Lord Ellenborough CJ [1803] EngR 498; (102 ER 630

at 633).), or to an essential element in a cause of action or defence

in proceedings in which judgment has been entered, as was said in Mills

v. Cooper ((89) (1967) 2 QB 459 at 468 per Diplock L.J) - and we

understand the effect of the joint judgment of Gibbs CJ, Mason and

Aickin JJ in Port of Melbourne Authority v. Anshun Pty. Ltd. ((90)

(1981) 147 CLR at 604.) to be that it is confined to such issues -

then, it is justified by the same policy considerations that give rise

to res judicata or cause of action estoppel. In our view, it ought now

be seen, not as a true estoppel, but as a different manifestation of

those same policy considerations. Indeed that is the view that was

taken by Diplock LJ in Mills v. Cooper ((91) (1967) 2 QB at 469.)

and accepted as correct by Viscount Dilhorne and Lord Hailsham of St.

Marylebone in Reg. v. Humphrys ((92) (1977) AC 1 at 19-20, 21 per

12. Of course, there may be true estoppels which prevent a person

from raising an issue bearing on a matter to be judicially determined.

An estoppel of that kind may come about because of the way in which

proceedings have been conducted with the result that the issue cannot

thereafter be raised in those proceedings or on appeal ((93) See, for

example, Banque Commerciale S.A., en Liquidation v. Akhil Holdings Ltd.

[1990] HCA 11; (1990) 169 CLR 279 at 284 per Mason CJ and Gaudron J and the cases

there cited. See also Calin v. Greater Union Organisation Pty. Ltd.

[1991] HCA 23; (1991) 173 CLR 33 at 45 per Brennan J; Van Gervan v. Fenton [1992] HCA 54; (1992) 175

party fails to raise an issue although he or she might reasonably have

done so, there may well be a true estoppel which precludes that party

13. Considerations bearing on estoppel resulting from the failure to

raise some issue which could reasonably have been raised in earlier

proceedings have sometimes been conflated with considerations relevant

to the various principles aimed at ensuring the final, binding and

conclusive nature of judicial determinations. This seems to have been

the case with the so-called "extended principle" in Henderson v.

Henderson ((94) [1843] EngR 917; (1843) 3 Hare 100 at 115 [1843] EngR 917; (67 ER 313 at 319).) which

"(t)he plea of res judicata applies, except in special

cases, not only to points upon which the Court was actually

required by the parties to form an opinion and pronounce a

judgment, but to every point which properly belonged to the

subject of litigation, and which the parties, exercising

reasonable diligence, might have brought forward at the

time".

It is clear that that principle, if it be one, is to be treated with

caution ((95) Port of Melbourne Authority v. Anshun Pty. Ltd. (1981)

14. It may be that some cases of true estoppel resulting from the

failure to raise a matter which could reasonably have been raised

in earlier proceedings will also prove, on analysis, to involve an

impermissible challenge to the incontrovertible correctness of the

judgment given in those proceedings. Indeed, there seems to have been

a conjunction of that kind in Port of Melbourne Authority v. Anshun

Pty. Ltd. ((96) ibid. at 602-604 per Gibbs CJ, Mason and Aickin JJ).

However, in our view, estoppel is separate and distinct from the

principles which secure the final, binding and conclusive nature of

judicial determinations and their conflation can only result in

15. The question whether there is any room in criminal proceedings

for issue estoppel of the kind that has developed in civil proceedings

was considered by this Court in Reg. v. Storey ((97) [1978] HCA 39; (1978) 140 CLR

364.), some few months after the House of Lords considered the same

question in Reg. v. Humphrys. It was held in Humphrys that issue

estoppel has no application in criminal proceedings. The same view was

taken by Barwick CJ, Gibbs and Mason JJ in Storey, whilst the other

members of the Court considered that there were some situations, albeit

rare and strictly circumscribed, in which there might be an estoppel

in favour of an accused ((98) ibid. at 372 per Barwick CJ, 388 per

Gibbs J, 400-401 per Mason J, 413-414 per Murphy J, 416-417 per

Aickin J (with whom Stephen J concurred).). It should be noted,

however, that Jacobs J preferred not to use the expression "issue

estoppel" and proceeded on the basis that the rule in question was an

aspect of the rule against double jeopardy which, in his Honour's view,

extended beyond the plea of autrefois acquit and included the situation

where "the commission of the first offence can be shown to be an

essential element of the second offence charged ... whether or not the

plea of autrefois acquit be open" ((99) ibid. at 407. Note, his

Honour gave the following example of a situation in which the principle

would operate even though the plea of autrefois acquit would not be

available: "if there had been an acquittal of rape, and then the woman

had died, the defendant could not be convicted of murder upon

evidence that, in the course of committing the felony of

rape, he had killed the woman", that being the converse

of the situation considered in Mraz v. The Queen (No.2) [1956] HCA 54; (1956)

Court, namely, Stephen, Murphy and Aickin JJ, can be regarded as

accepting that issue estoppel of the kind recognized in civil

proceedings is also applicable in criminal proceedings. And, even

then, there is nothing in their Honours' judgments to suggest that, as

between civil and criminal proceedings, there is a complete analogy,

or even substantial similarity, as to the circumstances in which issue

16. It was emphasized in Humphrys that there is a distinction between

issue estoppel and the pleas of autrefois acquit and autrefois

convict ((100) (1977) AC at 15-16 per Viscount Dilhorne, 33-34 per

Lord Hailsham, 44 per Lord Salmon, 52 per Lord Edmund-Davies.). The

distinction, at least so far as it concerns autrefois acquit, requires

further consideration. Autrefois acquit and autrefois convict are

often seen as different sides of the same coin ((101) See Spencer Bower

and Turner, op.cit. at 268-269.). To some extent they are: to the

extent that they prevent the prosecution of crimes for which an accused

has either been acquitted or convicted, they prevent inconsistent

decisions and serve to maintain the principle embodied in the maxim res

judicata pro veritate accipitur. Beyond that, however, they reflect

quite different considerations. Autrefois convict is the application

in criminal proceedings of the doctrine of merger which gives rise to

res judicata or cause of action estoppel in civil proceedings;

autrefois acquit operates within its confines to prevent the

prosecution from asserting the contrary of what has previously been

judicially determined in favour of an accused ((102) As to this

distinct aspect of autrefois acquit, see Mills v. Cooper (1967) 2 QB at

468-469. See also Connelly v. DPP (1964) AC at 1334 per Lord

Hodson, 1365 per Lord Pearce; Reg. v. Humphrys (1977) AC at 32-33 per

Lord Hailsham. And see generally Friedland, Double Jeopardy, (1969) at

94-95. Note that it is sometimes said that Reg. v. King (1897) 1 QB

214 is an example of autrefois convict operating as an estoppel,

although the better explanation would seem to be that of

inconsistent verdicts.). In this respect, autrefois

acquit is analogous to issue estoppel in civil proceedings, although

it clearly operates within a more limited area. In large part, that

is the result of the different character of civil and criminal

proceedings and the difficulty involved in identifying precisely

what, besides guilt or innocence, has been determined by the jury's

verdict ((103) See, for example, Reg. v. Storey (1978) 140 CLR at 374

per Barwick CJ, 379-380 per Gibbs J, 400 per Mason J).

17. As already indicated, the conclusive aspect of autrefois acquit

or that aspect of it which maintains the incontrovertible character of

judicial decisions derives from the principle embodied in the maxim

res judicata pro veritate accipitur. Its preclusive aspect, or that

aspect which prevents the re-litigation of matters already determined

in favour of the accused, derives from the same principles as issue

estoppel, as is the principle embodied in the maxim nemo debet bis

vexari pro eadem causa ((104) See Reg. v. Humphrys (1977) AC at 40 per

Lord Hailsham.) which, in its application to criminal proceedings, has

become known as the rule against double jeopardy ((105) See Sigler,

Double Jeopardy: The Development of a Legal and Social Policy (1969) at

18. It is clear from the decision in Mraz v. The Queen (No.2) ((106)

[1956] HCA 54; (1956) 96 CLR 62. See also Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341.) that

autrefois acquit does not exhaust the operation in criminal proceedings

of the principles embodied in the maxims res judicata pro veritate

accipitur and nemo debet bis vexari pro eadem causa. In that case a

verdict of (not guilty of murder but) guilty of manslaughter where, on

the prosecution case, death occurred in the course of the accused

committing rape (thus, invoking the felony-murder rule) necessitated an

acquittal when the accused was later charged with rape. The fact that

there is scope for the further operation of those principles appears

also from the rule that the prosecution cannot go behind an acquittal

((107) As to this rule, see generally Garrett v. The Queen [1977] HCA 67; (1977) 139

CLR 437 and Reg. v. Storey [1978] HCA 39; (1978) 140 CLR 364. See also Sambasivam v.

Public Prosecutor, Federation of Malaya (1950) AC 458.) and the

requirement that interrelated verdicts be logically consistent ((108)

See, for example, Giorgianni v. The Queen [1985] HCA 29; (1985) 156 CLR 473 where

acquittal of the principal offender necessarily resulted in the

quashing of an accessory's conviction for aiding and abetting.). Even

when these matters are taken into account along with the pleas of

autrefois, logic does not compel the conclusion that the principles are

19. It has been said that there is a need for the development of

reasonable and workable rules in this area of the law and that

one difficulty in that regard is "(t)he lack of an adequate

terminology" ((109) See Friedland, op.cit. at 89.). In our view,

neither that consideration nor the need to consider individual cases

which fall outside the pleas of autrefois and which are not covered by

the doctrines that have developed with respect to the unassailable

nature of an acquittal and the need for consistency, justifies the

importation of issue estoppel into criminal proceedings. And that is

so notwithstanding that, in our view, issue estoppel is not a true

estoppel but a manifestation of the principles directed to ensuring the

incontrovertible character of judicial decisions and the finality of

20. Issue estoppel would not only overlap with the plea of autrefois

acquit and with the doctrines that have already developed, but its

importation into the realm of criminal proceedings could well impede

the development of coherent principles which recognize and allow for

the distinct character of such proceedings. The preferable course, in

our view, is to accept that the principles which operate in this area

are fundamental and that the pleas and the developed doctrines

relating to the unassailable nature of acquittals and the need for

21. Clearly, the present case is not concerned with the plea of

autrefois acquit, the unassailable nature of an acquittal or the need

to avoid inconsistent verdicts. Nor is the case one which calls for

any consideration of the rule against double jeopardy: the offences

with which the accused is presently charged are distinct offences,

unrelated to those on which he was indicted in 1989. The only

question is whether the principle which ensures the incontrovertible

character of judicial decisions precludes the tender of the records of

22. It was put on behalf of the respondent that there is nothing

conclusive about a ruling as to the admissibility of evidence which,

it was said, involves no final determination of any issue of fact or

law. That is so. But this case is concerned with the determination

of an issue of fact, namely, voluntariness, on which the admissibility

of confessional material depends. It was also put that a voir dire

examination does not result in a conclusive determination of

voluntariness for it can be reconsidered at any time during the trial.

Again that is so, but it becomes final once a verdict is returned

and it remains final unless the verdict is quashed or set aside.

Moreover, its character as a final determination does not depend

on whether there is a right of appeal: leaving aside the limited

circumstances in which a court can vacate its own judgment, a judicial

decision is final and binding unless quashed or set aside on appeal;

it is necessarily final if there is no right of appeal.

23. The question whether the prosecution can tender confessional

material ruled involuntary and, thus, inadmissible in an earlier

concluded trial has been considered in other jurisdictions. That

course is permitted in some jurisdictions in the United States of

America ((110) See, for example, United States v. Wallace [1949] USSC 51; (1949) 336 US

793; United States v. Williams [1955] USCA4 222; (1955) 227 F 2d 149; Gasaway v. State

of Indiana (1967) 231 NE 2d 513 as to Indiana; People v. Plevy

(1980) NY 417 NE 2d 518 as to New York; State of Florida v.

McCord (1981) Fla 402 So 2d 1147 as to Florida; Commonwealth of

Pennsylvania v. Lagana (1986) 509 A 2d 863 as to Pennsylvania.), but

not in others ((111) See, for example, People v. Williams (1975) 322 NE

2d 461 as to Illinois and People v. Gray (1974) 222 NW 2d 515 as to

Michigan.). It has been held in New Zealand, in Bryant v. Collector

of Customs ((112) (1984) 1 NZLR at 284.), that the tender of

confessional material which has been ruled involuntary in an earlier

trial involves an impermissible challenge to a final judicial

determination and is, thus, an abuse of process. A different view was

taken in Canada in Duhamel v. The Queen ((113) (1984) 14 DLR (4th) 92.).

"if there is a bar to an extension of the doctrine of res

judicata to rulings on confession voir dires, it does not

stem from principle or logic. It is desirable that we avoid

relitigation of the issue and, as in this case, the risk of

conflicting decisions."

Nevertheless, it was held in that case that the material previously

ruled involuntary could be tendered for two reasons. The first was

that "there is no appeal (from a finding on a voir dire), and error is

generally subject to limited review" ((115) ibid. at 99. The reference

to "limited review" seems to be directed to the recognition of a right

of appeal on questions of law following acquittal.). However and as

earlier noted, that does not detract from the finality of the

determination. The second was the perceived need for mutuality. In

this regard it was said that a "statement wrongfully admitted ... would

follow and prejudice an accused throughout all of his other trials"

((116) ibid.). Mutuality is not a matter upon which the principles

which ensure the incontrovertible character of judicial determinations

and protect against double jeopardy depend. Rather, it is a

consequence of their application in civil proceedings. The position is

necessarily different in criminal proceedings where the prosecution

bears the onus of proving guilt beyond reasonable doubt and the accused

is entitled to insist that the prosecution discharge that onus in the

25. Strictly, the 1989 ruling on voluntariness was concerned only

with those parts of the records of interview relevant to the offences

for which the appellant then stood trial. However and as already

indicated, the statements which the prosecution wishes to tender in

the appellant's forthcoming trial are, so far as voluntariness is

concerned, exactly the same as those tendered in the 1989 proceedings.

In the circumstances, tender of the records of interview constitutes

a direct challenge to the 1989 determination which was a final

determination, or became so, once verdicts were returned. The

challenge is one which invites "the scandal of conflicting

decisions" ((117) Spencer Bower and Turner, op.cit. at 411.). And it

jeopardises public confidence in the administration of justice: in a

context where the onus of proof would be the same and where there is no

claim of "fresh evidence" or fraud, a determination that the

confessions were made voluntarily would undermine the incontrovertible

correctness of the verdicts of acquittal returned in 1989; equally,

there would be a shadow over any conviction on the charges in the

present indictment if confessional statements are admitted in evidence

notwithstanding the earlier judicial determination that the

circumstances in which they were made did not support a finding of

26. The course proposed by the prosecution amounts to an abuse

of process. The appeal should be allowed and there should be a

declaration to that effect. There is no need for any further order in

relation to counts 1, 4, 6 and 8: if no evidence is presented, the

McHUGH J The first question in this appeal is whether on the

proposed trial of the appellant on charges of armed robbery the Crown

is estopped from, or would be guilty of an abuse of process in,

tendering confessional evidence which was rejected in an earlier trial

of other charges of armed robbery. The confessional evidence is

contained in a record of interview. It was rejected at the earlier

trial on the ground that the confessional evidence was not made

voluntarily. A second and similar question arises in the appeal

in respect of confessional evidence contained in another record of

interview that was made shortly before the making of the record of

interview that was rejected in the earlier proceedings. In my

opinion, no issue estoppel has arisen in respect of either record of

interview, and it would not be an abuse of process to tender them at

2. The appellant was arrested in August 1988 and charged with a

number of offences of armed robbery. Before he was charged, he made

four records of interview allegedly containing various admissions

in respect of the offences. In 1989, he was tried by a jury in the

District Court of New South Wales on an indictment containing four

counts of offences of armed robbery. At the trial, the Crown sought

to rely on admissions in three of the records of interview. The first

and second records of interview contained admissions concerning counts

1 and 2 of the indictment. The fourth record of interview ((118) I

have numbered the records of interview in the order in which they were

taken.) contained admissions concerning counts 3 and 4 of that

indictment. The trial judge, Phelan DCJ, rejected the tender of the

first, second and fourth records of interview on the ground that they

were not made voluntarily. His Honour held that the appellant

"participated in what I take to be a damning record of interview

because of a desire on his part to protect his wife and child from

suffering a further traumatic incident". The appellant was acquitted

on counts 1 and 2. He was convicted on counts 3 and 4.

3. In 1992, the Crown indicted the appellant in the District Court

on a further eight counts of armed robbery. On the trial of the

indictment, the Crown proposes to rely on confessional evidence in the

fourth record of interview ((119) This was the record of interview

relied on in support of counts 3 and 4 in the trial before Phelan

DCJ) to support its case on six of the counts. It proposes to rely

on confessional evidence in the third record of interview to support

its case on the fourth count of the indictment. No record of interview

is relied on in support of the remaining count. The Crown does not

propose to rely in any way on the first and second records of interview

which contained admissions concerning the charges of which the

4. After the 1992 indictment was presented, the appellant asked

Kinchington DCJ to stay the proceedings. His Honour refused to do

so. His decision was upheld by the Court of Criminal Appeal of the

Supreme Court of New South Wales. Gleeson CJ, who gave the judgment

"(T)he confessions to be relied upon by the Crown at the

further trial of the appellant are alleged confessions to

crimes different from the crimes with which Judge Phelan was

concerned, and the facts mentioned in such confessions were

different from the facts relating to the alleged crimes

with which he was dealing. It is true that the additional

confessions were made at the same time and in the same

circumstances as the confessions with which he was

concerned, but that is not enough to sustain the appellant's

argument."

5. The uses and proposed uses of the four records of interview are

Robbery location RoI tendered Verdict

and date but rejected

in 1989 trial

Count 2 Bardwell Park (31.1.88) Nos 1 and 2 Acquitted

Robbery location RoI proposed

and date to be tendered

6. The policy of the law is to prevent ultimate issues of fact or

law in dispute between parties from being adjudicated in judicial

proceedings more than once. A final determination on an ultimate

issue of fact or law, once given by a judicial tribunal acting within

its jurisdiction, forever binds the parties and all those who claim

through them. As a result of this policy, neither the parties nor

those claiming through them can dispute the correctness of the

determination in subsequent litigation. The remedy for the incorrect

determination of an ultimate issue is to set it aside; it cannot be

attacked collaterally in other judicial proceedings. However, a

judicial determination is only binding in respect of matters that were

fundamental to the determination. Those matters include every matter

that was essential to the decision even if that matter was not itself

contested in the litigation ((120) Hoystead v. Commissioner of Taxation

(1926) AC 155 at 165, 170; Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at

531-532.). Consequently, an issue estoppel arises in respect of every

issue of fact or law that is "necessarily decided by the prior

judgment, decree or order" ((121) Blair (1939) 62 CLR at 532 per Dixon

J). In Blair v. Curran ((122) ibid at 510.), Starke J said:

"(A) judgment is conclusive evidence not merely of the facts

directly decided but of those facts which are necessary

steps to the decision - so cardinal to it that without them

it cannot stand."

7. An issue estoppel can only arise, however, in respect of an

ultimate issue in the litigation. No estoppel can arise in respect of

evidentiary issues even when they are the building blocks in the proof

of an ultimate issue. In Thoday v. Thoday ((123) (1964) P 181 at 198.)

"The determination by a court of competent jurisdiction of

the existence or non-existence of a fact, the existence of

which is not of itself a condition the fulfilment of which

is necessary to the cause of action which is being litigated

before that court, but which is only relevant to proving the

fulfilment of such a condition, does not estop at any rate

per rem judicatam either party in subsequent litigation from

asserting the existence or non-existence of the same fact

contrary to the determination of the first court."

In Reg. v. Storey ((124) [1978] HCA 39; (1978) 140 CLR 364 at 424.) Aickin J said:

"(I)ssue estoppel applies only to issues. There is no

estoppel as to evidentiary facts found in the course of

determining an issue. There is nothing to prevent a party,

in a later proceeding in relation to a particular issue of

fact negatived in the earlier proceeding, tendering evidence

of those same facts directed to a different issue."

8. In theory, the doctrine of issue estoppel should apply in criminal

trials as well as in civil proceedings. But there are practical

difficulties in applying it. There is no need for me to discuss those

difficulties. They were extensively discussed in the speeches in

the House of Lords in Reg. v. Humphrys ((125) (1977) AC 1.) and in the

judgments of members of this Court in Storey. Notwithstanding those

difficulties, I agree with the reasons of Brennan J in this case for

holding that the doctrine of issue estoppel is applicable in favour of

the accused in criminal proceedings in this country. Indeed, in my

opinion, before this Court could reject the application of the doctrine

to criminal proceedings, it would have to overrule the decision of

this Court in Mraz v. The Queen (No.2) ((126) [1956] HCA 54; (1956) 96 CLR 62. I am

unable to agree with the view of Mason J in Storey (1978) 140 CLR at

400-401 that Mraz (No.2) was a case of res judicata and not issue

estoppel.), a decision that has stood for nearly 40 years.

9. In my opinion, the doctrine of issue estoppel has no application

in this case. The issues that were involved in the trial in 1989 are

not the same as those that are involved in the current proceedings.

They relate to quite different charges in respect of quite different

premises. For that reason alone, the ruling of Phelan DCJ cannot

10. Moreover at the 1989 trial, the issue as to whether the appellant

made the records of interview voluntarily was not a matter that was

a necessary step in the verdicts of acquittal or conviction. The

verdicts in the 1989 trial are, of course, final determinations that

bind the Crown and the appellant. They determine once and for all

(1) the appellant was not guilty of the offence of armed robbery in

respect of premises at Panania on 29 December 1987;

(2) the appellant was not guilty of the offence of armed robbery in

respect of premises at Bardwell Park on 31 January 1988;

(3) the appellant was guilty of the offence of armed robbery in

respect of premises at Belmore on 17 March 1988;

(4) the appellant was guilty of the offence of armed robbery in

respect of premises at Berkeley on 10 April 1988.

If the accused was charged again with any of those four offences,

he could plead autrefois acquit or autrefois convict, as the case

required. The judgments of acquittal and conviction are also

conclusive evidence of any "matter necessarily decided" by those

judgments. But those judgments do not decide, let alone necessarily

decide, that the records of interview were not made voluntarily.

11. The findings of Phelan DCJ were simply findings concerning

the conditions of admissibility of evidence. I have already pointed

out that issue estoppel does not arise in respect of evidentiary

facts ((127) Supra at 30, see Blair (1939) 62 CLR at 532; Brewer v.

Brewer [1953] HCA 19; (1953) 88 CLR 1 at 15-16; Thoday (1964) P at 198; Cachia v.

Isaacs (1985) 3 NSWLR 366 at 386.). No finding of his Honour was a

determination, let alone a final determination, of an ultimate issue.

The ultimate issues in the trial before Phelan DCJ were whether, on

particular dates, the appellant had committed the acts that constituted

the elements of armed robbery at the premises specified in the

indictment. A finding by Phelan DCJ that the appellant had

voluntarily made a confession about any of those robberies would have

been evidence of his guilt. But it would have required a finding by the

jury that the confession was reliable enough to be acted upon before

12. The issue as to whether the confession was made voluntarily,

therefore, was neither an ultimate issue nor a matter that was

essential to the determination of an ultimate issue. The appellant

could be convicted, as he was on the third and fourth counts in 1989,

even though Phelan DCJ found that the records of interview were

not made voluntarily. He could have been acquitted on all counts even

if Phelan DCJ had found that the records of interview were made

voluntarily. Even if his Honour had admitted the records of interview

into evidence and the jury had brought in a special verdict that the

records of interview were or were not made as the result of fear or

threats, no issue estoppel would have arisen ((128) See Jackson v. The

Queen [1962] HCA 49; (1962) 108 CLR 591 as to the jury's right to examine for itself

the evidence that goes to the issue of voluntariness, notwithstanding

the trial judge's findings. The Court said (at 596):

"where a question arises as to the weight to be given

by the tribunal of fact to a confession of guilt, no

authority is needed for the proposition that all the

circumstances surrounding the making of it which tend

to show either that it can safely be relied upon or

that it would be unwise to do so are admissible. It

would for example be clearly permissible to show that,

at the time a person confessed to the commission of a

crime, he was drunk or insane or had made it as the

result of fear or under some other form of pressure and

to base upon that evidence an argument that the

confession has no little or no probative value."

(my emphasis)). The jury's verdict

on that issue, like that of Phelan DCJ, would be a finding on an

evidentiary fact and would not be "so cardinal" to any of the verdicts

that, without it, that verdict could not stand. The truth of that

proposition is demonstrated by the conviction of the accused on

the third and fourth counts of the indictment at the 1989 trial,

notwithstanding that the fourth record of interview was held by

Phelan DCJ to have been made involuntarily and its tender rejected.

13. Because the ruling of Phelan DCJ was not a determination of an

ultimate issue or a matter that was necessarily decided by such a

determination, no issue estoppel arose in respect of the ruling. It

follows that, in so far as the Crown relies on admissions contained in

the fourth record of interview to prove counts 1, 2, 3, 5, 6 and 8 of

the current indictment, no issue estoppel prevents it from doing so.

14. Further, no issue estoppel is involved in respect of the third

record of interview. Neither that record of interview nor the offence

alleged in the fourth count was the subject of any ruling or verdict

at the trial before Phelan DCJ Nor was its voluntariness

necessarily involved in the jury's determinations as to the

appellant's guilt or innocence of the four counts tried in 1989.

15. Accordingly, the Crown is not estopped from relying on the third

and fourth records of interview at the trial of the appellant.

16. Inherent in every court of justice is the power to prevent its

procedures being abused ((129) Hunter v. Chief Constable of the West

Midlands Police [1981] UKHL 13; (1982) AC 529 at 536.). Although the categories of

abuse of procedure remain open, abuses of procedure usually fall into

(1) the court's procedures are invoked for an illegitimate purpose;

(2) the use of the court's procedures is unjustifiably oppressive to

(3) the use of the court's procedures would bring the administration

Many, perhaps the majority of, cases of abuse of procedure arise

from the institution of proceedings. But any procedural step in the

course of proceedings that have been properly instituted is capable of

being an abuse of the court's process. In Walton v. Gardiner ((130)

(1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said

that the jurisdiction to stay proceedings that are an abuse of process

"extends to all those cases in which the processes and procedures of

the court, which exist to administer justice with fairness and

impartiality, may be converted into instruments of injustice or

unfairness". Their Honours gave three examples of such an abuse of

process ((131) ibid.). One of them is the case where an estoppel

cannot be established but the proceedings are unjustifiably oppressive

because it is sought to litigate an issue which has already been

disposed of by earlier proceedings ((132) See, for example, Reichel v.

Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254

at 1361-1362.). Reichel v. Magrath ((133) (1889) 14 App Cas 665.) is

17. In Reichel, the appellant, a clergyman, sought to relitigate

the ultimate issues which he had lost in an earlier action that he

had brought against his Bishop and others. In the earlier action,

he had claimed a declaration that he was vicar of a benefice and an

injunction to restrain the Bishop from instituting, and the other

defendants from presenting, any other person to the benefice.

Judgment was given against the appellant. Subsequently, the

respondent was appointed to the benefice as the appellant's successor.

He later brought an action against the appellant for a declaration

that the respondent was the vicar of the benefice and an injunction to

restrain the appellant from depriving the respondent of the occupation

of the house and lands of the parsonage. In his statement of defence,

the appellant set up the same case as that on which judgment had been

given against him in the first action. Because the parties were

different, no estoppels could arise. But because the appellant was

seeking to relitigate the very issues on which judgment had been given

against him, the House of Lords held that his statement of defence was

18. Hunter v. Chief Constable of the West Midlands Police ((134) [1981] UKHL 13; (1982)

AC 529.) was also decided on the basis that it is an abuse of process

to attempt to relitigate an issue already decided by a court of

justice. But I think that the decision is best explained as a case of

an abuse of process arising from civil proceedings being commenced for

the improper purpose of putting pressure on the Home Secretary to

review the appellant's criminal convictions. Hunter was one of the

so-called Birmingham Six. The written and oral confessions of Hunter

and his fellow accused amounted to the chief evidence against them on

charges of murder. They alleged that the confessions were made as the

result of threats and violence. The trial judge found, beyond

reasonable doubt ((135) This is not the test in Australia: Wendo v.

The Queen [1963] HCA 19; (1963) 109 CLR 559.), that there had been no physical

violence or threats by the police officers who obtained the confessions

and that the confessions were made voluntarily. The appellant and the

other accused repeated their allegations before the jury, but they were

convicted. Subsequently, Hunter sued the police officers for damages

for assault. The House of Lords held that Hunter's statement of claim

should be struck out as an abuse of process of the court.

19. Lord Diplock, with whose speech the other Lords agreed, said that

the proceedings had been initiated ((136) Hunter (1982) AC at 541.):

"for the purpose of mounting a collateral attack upon a

final decision against the intending plaintiff which has

been made by another court of competent jurisdiction in

previous proceedings in which the intending plaintiff had a

full opportunity of contesting the decision in the court by

which it was made."

Lord Diplock identified the "final decision" as that of the trial

judge in finding that confessions were admissible ((137) ibid at 542.).

His Lordship accepted that initially this decision was provisional

because the trial judge had the power to reconsider the ruling until

the jury brought in its verdicts. Consequently, finality was not

achieved until "the trial ended with the return of the jury's verdict

of guilty and the pronouncement by the judge of the mandatory sentence

of life imprisonment" ((138) ibid.). Lord Diplock said that, once

that had occurred, the decision was final; Hunter was mounting a

collateral attack on this decision by proceeding with his civil claim.

The claim was, therefore, an abuse of process. In reaching this

decision, Lord Diplock applied a dictum of Lord Halsbury in Reichel

"I think it would be a scandal to the administration of

justice if, the same question having been disposed of by one

case, the litigant were to be permitted by changing the form

of the proceedings to set up the same case again".

20. Lord Diplock did not explain in what sense the ruling of the

trial judge had become final. If Lord Diplock meant that, after the

verdict, the trial judge could no longer reverse his ruling, he was

stating a truism that of itself had hitherto not been regarded as

being of any relevance in the law of estoppel or the law of abuse of

process. If he meant that the ruling was final in the same sense that

a judgment may be final, he was equating a decision on an evidentiary

fact with a judgment on an ultimate issue. That would have immense

implications for the doctrines of abuse of process and estoppel.

Further, in applying Lord Halsbury's dictum, Lord Diplock extended it

to an evidentiary issue. Reichel was concerned with an attempt to

relitigate ultimate issues. It was a very different case from Hunter.

21. In my opinion, the decision in Hunter is best explained and

justified on the ground that the civil action was brought for the

improper purpose of putting pressure on the Home Secretary ((140) See

Hunter (1982) AC at 541.) to review the plaintiff's convictions for

murder ((141) This was also the conclusion of Davies J in Saffron v.

Federal Commissioner of Taxation [1991] FCA 363; (1991) 102 ALR 19 at 23.). In so far

as the decision rests on the conclusion that the ruling of the trial

judge was a final determination in the same sense that determinations

as to ultimate issues are final, it is contrary to principle and should

22. However, Hunter was applied by the New Zealand Court of Appeal in

Bryant v. Collector of Customs ((142) (1984) 1 NZLR 280.). In Bryant,

the appellant had been charged with and acquitted of the theft of

goods. During his trial, statements made to the police were ruled

inadmissible. As a result, there was no evidence to go to the jury.

He was then charged with smuggling the same goods. At the second

trial, the same statements were ruled admissible. The appellant was

convicted. The Court of Appeal of New Zealand held that the Crown was

not "entitled to relitigate the issue of the voluntariness of

statements made by the appellant to the police officer" ((143) ibid at

282.). Issue estoppel is inapplicable in criminal proceedings in New

Zealand ((144) Reg. v. Davies (1982) 1 NZLR 584.). However, the Court

held that the proceedings were an abuse of process. It said ((145)

"It is obvious enough that misuse of the judicial process -

of which the attempted relitigating of issues is just one

example - is likely to produce unfairness and to undermine

confidence in the administration of justice."

23. The Court said that only by holding that the proceedings were an

abuse of process could the trial judge uphold the relevant public

policies in this area of the criminal law ((146) ibid at 284.):

"that litigation should settle disputes finally; that an

accused should not be harassed again by the reopening of a

central issue on which he succeeded at the first trial; and

that if an unappealed or unsuccessfully appealed final

decision of one Court may be reopened by another Court any

resulting inconsistency can only bring the administration of

justice into disrepute."

24. The Court of Appeal held that the use of the evidence held

inadmissible in the first trial was a collateral attack on the

acquittal in that trial and, therefore, an abuse of process.

"The attempt to introduce the oral and written statements to

the police in evidence at the second trial was a challenge

to a final decision of another Court of competent

jurisdiction. ... Judge Callander's ruling at the first

trial that the tendered statements were not voluntary and

were accordingly inadmissible was immediately binding on

the Crown and became final when the verdict of the jury was

entered." ((147) ibid.)

25. With respect, this reasoning contains the same error as that which

occurs in the speech of Lord Diplock in Hunter. The ruling of the

trial judge was not a final determination in the sense that that term

has been understood in this area of the law. If the decision is to be

supported, it must be upon the basis that it is an abuse of process to

attempt to relitigate an issue that from a practical point of view was

determinative of the ultimate issues. It may be that Hunter can also

26. In my opinion, it would not be an abuse of process to tender the

third and fourth records of interview in the current proceedings.

27. As I have said, the third record of interview was not tendered in

the proceedings before Phelan DCJ It was not the subject of any

judicial determination as to its voluntariness in those proceedings.

It had no relevance to any of the four charges that were tried in

1989. I am unable to accept the proposition that, if the third record

of interview was now held to have been made voluntarily, it would

invite "the scandal of conflicting decisions" or undermine the two

verdicts of acquittal returned in 1989. A decision that the third

record was made voluntarily would not conflict with any prior decision

of Phelan DCJ or the verdicts of acquittal. The most that could

be said if the third record of interview was held to have been made

voluntarily is that the ruling was inconsistent with the ruling of

Phelan DCJ concerning the first, second and fourth records of

interview at the 1989 trial. But the prospect of inconsistency

between a ruling and a prior ruling is not enough to constitute an

abuse of process. Even the fact that a ruling or decision in one case

may inferentially lead to a conclusion that a ruling or decision in an

earlier case was wrong does not mean that it is an abuse of process to

ask a court to make the ruling or give the decision. In the light of

this Court's decision in Reg. v. Darby ((148) [1982] HCA 32; (1982) 148 CLR 668.),

for example, it could not be said that it was an abuse of process to

indict a conspirator simply because the co-conspirator was acquitted in

28. Moreover, neither as a logical nor a legal proposition does it

follow that, if the third record of interview is admitted into

evidence at the proposed trial, it would undermine the verdicts of

acquittal at the 1989 trial. All that its admission could do would

be to suggest - not establish - that the first and second records of

interview should have been admitted into evidence in support of the

first and second counts on which the appellant was acquitted. But

even then it does not necessarily follow that, if those records had

been put before the jury, they would have convicted the appellant

29. It is not enough to constitute an abuse of process in this case

that the circumstances surrounding the making of the third record of

interview were similar to, or even identical with, those surrounding

the first, second and fourth records of interview. If it was, then

any attempt to relitigate any finding or evidentiary or legal ruling

made in an earlier proceeding would constitute an abuse of process

if the circumstances surrounding the ruling were similar to those

surrounding the issue proposed to be litigated. Moreover, it would

seem to mean that any attempt to seek a finding that was inconsistent

with an earlier finding between the same parties would be an abuse of

process. It would follow that, whenever the Crown or an accused

person obtains a favourable finding in the course of a criminal trial

and the jury returns a verdict, neither party can tender any evidence

in any other proceedings that would tend, directly or indirectly, to

undermine the finding. Not only would such a proposition make the

doctrines of autrefois acquit, autrefois convict and issue estoppel in

criminal cases superfluous, it would preclude the litigation of facts

and issues to a far greater extent than those doctrines do.

30. I see little justification for extending the doctrine of abuse of

process to cover cases where a finding on an evidentiary or subsidiary